The Immigration Debate and the Hidden Root

In the immigration debate there seems to be a lot of talking past one another. There’s also a lot of talk that’s essentially a reliance upon an utilitarianism; ie, my immigration policy is right because it fixes a perceived problem. And then there’s a lot of talk about why the utility of the proposed immigration policy is reasonable or unreasonable. There can be some headway made in these discussions. Talk about whether or not the Mexicans are good or bad for the economy, or talk about the reasonableness of fearing terrorism from Middle Easterners can be fruitful conversations. Clearly there’s also a lot of emotionalism involved. Fears and anxieties based off of either bad theology or misleading statistics are littered throughout nearly every conversation. It’s also good to address those fears and explain how they are either built on a theologically erroneous foundation or based on incomplete data, padded numbers, and purposely misleading statistics. The old saying, “lies, damn lies, and statistics” should be remembered in these conversations. You offer one chart, someone can raise you two charts. I’m not saying that data can’t be helpful to look at, but ultimately data is collected and interpreted by men with pre-existing ideas and goals. Even scientific studies have presuppositions. Sometimes good presuppositions. Oftentimes not so great. Consider, for example, that in Europe terrorism has been most prevalent in Norther Ireland. If we are to fear-monger based on that data, we should radically restrict Irish Catholics from entering the USA. That’s just one example of how stats on terrorism can be used to vilify Islam or Catholicism, depending on who’s doing the research.

But these conversations haven’t really addressed the root. The root is the legitimacy or illegitimacy of civil governmental action. Does the authority of the civil government rightly extend to restricting the free movement of individuals across national borders?

Or, an even better question, how do we know what the civil government has the authority to do?

That is where many of us will divide. Each one of us has acknowledged or unacknowledged presuppositions about the nature of civil government authority. We, in these discussions, are making judgments about the justness of certain policies based on our presuppositions. If someone, whether or not they realize it, assumes one foundation of authority, they will end up believing something very different from the guy that starts with another understanding of authority. Sometimes they can come to some agreement even with these fundamental disagreements because all the utilitarian and emotional objections were adequately and convincingly made. But most often we run into presuppositional walls. It’s good to know what wall to tear down.

For Christians that believe that Scripture should inform every sphere of life, the answer given to the question of civil authority can still be quite different. Generally speaking there’s two basic positions.

First, the civil government has the legitimate authority to pass laws, regulations, and restrictions as long as they do not conflict with our explicit Christian duties or somehow coerce the Christian into sin. The duty and purpose of the civil government, therefore, is relatively unregulated. It has a vast amount of authority and can seek out its amorphous and abstract goals of “public welfare” and “national security” in nearly any way they deem to be fit. This view of authority and law is sometimes called positivism. The function of the civil government is positive, in that its function is to ensure, by whatever means, abstract goals such as peace and prosperity. For legal history buffs, you’ll recall that legal positivism led to nearly every form of legal and political tyranny in America and the Western World. To quote Rushdoony on positivism,

“But, if the law is positive in its function, and if the health of the people is the highest law, then the state has total jurisdiction to compel the total health of the people. The immediate consequence is a double penalty on the people. First, an omnicompetent state is posited, and a totalitarian state results. Everything becomes a part of the state’s jurisdiction, because everything can potentially contribute to the health or the destruction of the people. Because the law is unlimited, the state is unlimited. It becomes the business of the state, not to control evil, but to control all men. Basic to every totalitarian regime is a positive concept of the function of law.”

In regards to immigration and Scripture, positivism presupposes that in order to find Biblical support for highly restrictive national borders, all that is needed is an absence of a specific prohibition. According to this sort of “Christian positivism”, the opponents of closed borders must find a specific prohibition against closed borders. Although there is text after text speaking about the duty we have to sojourners and foreigners, and although there is zero historical or Biblical evidence for a closed border policy in ancient Israel, none of that matters to the positivist because there is not a crystal clear “thou shalt not close thy borders” law.

When positivism is the presupposition it causes a dilemma for the Christian. Especially for the freedom loving politically conservative Christian. With an assertion of positivism as the basic function of God’s Law, it loosens the requirements upon the civil government to only a bare minimum. In secular legal positivism, any and all moral standard is rejected and replaced with a stark utilitarianism. The scholarly roots of these ideas are found in men like Jeremy Bentham and John Austin and later men like the notorious John Dewey. However, with this view of “Christian positivism”, there is at least one logical restriction on the civil government. The government cannot force Christians to sin. All other actions of the Government must be obeyed and acknowledged as a legitimate function of the government. You may disagree with the government, but ultimately you must believe that they have the legal right. There’s nothing restricting the government except specific prohibitions against sin in this view. The positivist, however, often arbitrarily determines how much governmental power is too much. Being led by his personal preferences and emotions, he arbitrarily draws a line wherever he chooses. The government has the right to “protect and serve”, but only up to a point. What point? Well that depends on which conservative positivist you’re talking to. Theologically and logically, the only built-in limiting standard is restrictions against commands to sin, but that isn’t sufficient to the typical conservative positivist. So they draw their arbitrary lines. They’ll, often, defend ardently their right to own firearms, while at the same time theologically giving the civil government the right to restrict private ownership of firearms. This is what functional positivism looks like in Christianity.

But instead of positivism, the Law of God is fundamentally and primarily negative. It’s negative in that it deals primarily with lawbreakers, not controlling non-lawbreakers. Don’t get me wrong, there are positive aspects of God’s law, but the judicial function of God’s Law is relegated to the negative aspect of God’s Law. This is why murderers should be put to death by the civil magistrate, but someone who hates his brother in his heart will answer to God but not the state. Likewise, abortionists break the negative aspect of the Sixth Commandment, and apathetic Reformed book-readers only break (typically) the positive aspect of the Sixth Commandment (eg, not speaking out against murder). So we wouldn’t ever execute people for breaking the positive aspect of the Sixth Commandment, although it is still clearly sin. The civil government is regulated and bound by the Law of God. The bounds of the authority of the civil government is defined by the negative aspects of the Law of God. I’m sure everyone can see how fundamentally different this view will be. When asked to justify a governmental policy, the negativist looks in Scripture for a clear principle and/or prescription. He does not look for a prohibition because the prohibition is implied by a sort of “Regulative Principle of Government”. The power of the government is tightly regulated. With positivism, allowance is implied and a sort of “Regulative Principle of Liberty” is established. The liberty of the people is tightly regulated. The starting place of positivism is that the government has all authority on earth unless there’s a specific prohibition. The starting place of negativism is that man has liberty unless there’s a specific prohibition placed upon man (keep in mind I’m speaking legally/civilly, not ethically. Man does have more restriction ethically. Positive duties and whatnot). This is what Rushdoony called the “direction of the Law.”

It is important to understand who has the burden of proof and why. Not only important, but vital. If liberty must be proven by prescription, then we’re dealing with the philosophical foundation of tyranny. If the power of government must be proven by prescription, liberty and law is ensured for all people according to the Law/Word of God. In positivism we are left with the whims and opinions of man claiming autonomous authority in himself. In negativism we are bound theonomically to God’s Law. As always, there’s autonomy or theonomy.

So, although we could spend days talking about terrorism, economics, xenophobia, fear, and on and so on, there’s really one question that I want answered.